Public Bill Committee

[Martin Caton in the Chair]

Clause 6  - Prior permission of the court

Question proposed, That the clause stand part of the Bill.

Gerry Sutcliffe: Good morning to you, Mr Caton, and to Committee members on this bright and sunny day. I have to say I feel a lot better than I did yesterday morning, so I hope we will make progress in discussing the various measures in the Bill.
Clause 6 and some of the subsequent clauses are more or less direct lifts from the Prevention of Terrorism Act 2005, and I am sure that the Minister will tell us where they differ. The clause centres on the prior permission needed from the courts in relation to the measures imposed on an individual in keeping with condition E in clause 3.
I am slightly concerned that the Secretary of State can go to the court to ask for measures to be imposed on an individual, without that individual being aware of the measures. When we discussed overnight residence, it was clear that people had to live in an agreed place. However, if people have to stay in a particular agreed place, but they do not know that the measures have been applied, how do they deal with that?
As we know, the courts have a great role to play. As my right hon. Friend the Member for Salford and Eccles said, control orders are perhaps the most scrutinised provision to have been legislated for. It is interesting to see the courts’ impact on our legal system, and I am delighted that the hon. and learned Member for Sleaford and North Hykeham is with us. Perhaps the Minister would care to comment on a recent court judgment in relation to police bail, which we discussed earlier, and on the role that the courts play.
Will the Minister also talk me through what will happen, given his wish for an individual to lead a reasonable, near-normal life, and given that the Secretary of State will go to court for measures, which could include residency, but will not be able to discuss where an agreed locality is? I hope that I have made that clear; I am sure the Minister will understand what I am trying to say.

Paul Goggins: I welcome you back to the Chair, Mr Caton. I want to start with my hon. Friend’s observation that much of this clause and subsequent clauses are similar to the 2005 Act. I hope that the Minister will express his generous appreciation of former Ministers, who did more than half his work for him by drafting that earlier legislation.
Mr Caton, you would admonish me if I read extensively from the Bill and the 2005 Act, but I want to give one example to explain what I am saying. Clause 6(3) says:
“The function of the court on the application is…to determine whether the relevant decisions of the Secretary of State are obviously flawed”.
If the Committee goes to section 3(3)(b) of the Act, it will find the following words:
“the function of the court on the reference is to consider whether the decision of the Secretary of State to make the order he did was obviously flawed.”
That is an absolute lift, and we see that time and time again. I hope, therefore, that the Minister will give generous recognition to the efforts of former Ministers.

Bob Stewart: I hope the right hon. Gentleman will forgive me, but I am not a lawyer—I am working class and pretty simple. Why do we need the words “obviously flawed”? Is not saying “flawed” in plain English good enough? Is this some legalistic mumbo-jumbo? The words “obviously flawed” seem unnecessary—the decision is either flawed or it ain’t.

Paul Goggins: The hon. Gentleman makes an interesting point, and my right hon. Friend the Member for Salford and Eccles, who had a hand in the obvious flaw in 2005, might want to address it. The hon. Member for Beckenham might want to make a long speech later to draw out the point that he has cleverly made, and I am sure that the Minister will respond.
I suspect that the Minister will have to work even harder today than he has in previous sittings, as he explains to us how all the clauses will work. Few amendments have been tabled for debate today, so we will depend on his explanation of the clauses. First, will he explain how the process in clause 6 and in some later clauses will work? Paragraph 69 on page 13 of the explanatory notes states:
“Subsection (4)provides that the court may consider the Secretary of State’s application without the individual on whom the measures would be imposed being aware or having the opportunity to make representations.”
Again, the clause states that that “may” happen, not that it “must” happen, so a judgment clearly has to be made about whether the suspect is told about it. I would appreciate if the Minister explained in what circumstances the suspect would be made aware of it before permission is sought from the court. In reality, does he expect that a suspect would ever be made aware of it beforehand? If not, why is the word “may” used rather than the word “must”?
Secondly, on timing, we know from this and subsequent clauses that the directions hearing must take place within seven days, unless the suspect objects, in which case the period can be longer. We would all appreciate it if the Minister confirmed that should the suspect delay the hearing beyond seven days, the conditions imposed as a result of permission being granted would be in place and enforced throughout that period. Although the Bill states that it must be held within seven days, how quickly will the directions hearing take place in practice? When it states that a review hearing should be held
“as soon as reasonably practicable”,
how soon will that be? On the radio this morning, there were discussions about the possible appeal against the ruling on police bail which, because the courts are in recess over the summer, might take many months and, in that case, a hearing held as soon as reasonably practicable” might be in November, which is a very long time away. We want assurance from the Minister that
“as soon as reasonably practicable”
means what it appears to mean, which is “pretty soon”.

Hazel Blears: I welcome you to this sitting of the Committee, Mr Caton. I will be brief, because I do not want to substitute for the Minister, and I have a terrible feeling that some of the points raised may come to rest with me.
I have compared the provisions in the 2005 Act with the provisions in the Bill, and many of the measures have identical wording—for example, that applies to schedules 2 to 4 in the Bill. Members, including those who were not Members of Parliament when the 2005 legislation went through, will want an explanation from the Minister about how the system will work. I particularly welcome an explanation of any differences in the Bill’s language or intent. Certainly, the subsections mentioned by my right hon. Friend the Member for Wythenshawe and Sale East are directly taken—word for word—from section 3(5) and (7) of the 2005 Act. Perhaps that is an acknowledgment by the Minister that the drafting was sound, despite the scrutiny of, and litigation over, some of the provisions that have since been made.
We also want the Minister to take us through the reasons for requiring the prior permission of the court, and the circumstances in which it is appropriate to make ex parte applications, which are heard in the absence of someone subject to such an application. Clearly, there is provision for ex parte applications to be heard fully, with the person subject to the notice having access to at least the opening material and the special advocate process. I would therefore welcome an explanation of the safeguards in place to ensure that there is intense scrutiny as the matter goes through the judicial process. Sometimes, the legislation is seen as a kind of ex parte process almost in principle, when in fact the ex parte part is a minor part of it. There is full judicial scrutiny in the process.
I was talking to a group of international students at the Royal College of Defence Studies yesterday. They were particularly interested in looking at our legislation. Sometimes there are misperceptions about our legal system and the intensity of our judicial scrutiny. It was fascinating to hear from some delegates from France and other European countries, as they have entirely different legal systems and do not necessarily have the degree of judicial scrutiny that we have in our system. Perhaps the Minister would assure Committee members, particularly his Liberal Democrat colleagues, that there is a robust system of judicial scrutiny for this legislation.

Julian Huppert: Good morning, Mr Caton. I want to raise the issue of the two words, “obviously flawed”, which were touched on by my hon. Friend the Member for Beckenham. I am not a lawyer— I started a law degree, but unfortunately my first-year exams clashed with the elections in 2010, and I had to make a choice between career options. I am interested in the phraseology that has been used. I do not know whether there is a hierarchy of options. If we look at levels of evidential understanding, we know that there is a criminal standard, a civil standard, reasonable belief and reasonable suspicion. We have settled on reasonable belief for the Bill, but personally I would push it up towards a balance of probabilities, because I generally believe that knowing that someone is at least 50% likely to have done something is a good threshold. I am simply unaware as to whether there is an equivalent set of positions in such cases.
“Obviously flawed” strikes me as a strong term. It is possible for something to be flawed or clearly wrong, but not obviously so. I am sure that some of us would consider a number of pieces of legislation from the previous Government, and from all Governments, to be flawed, but I suspect that the Ministers who pushed them through would argue that they are not obviously flawed—certainly not at the time. A debate about flaws is not the same as a debate about obvious flaws. I would therefore be grateful to understand the role of the phrase. Is it the same thing as requiring the Secretary of State to behave reasonably? What other options were considered? Why was “obviously flawed” settled on?

Martin Caton: I understand that Mr Sutcliffe has made a request for a statement on the recent court decision on bail. I am afraid that that is not relevant to the Bill, so I would be grateful if the Minister resisted the temptation to discuss it.

James Brokenshire: I am cognisant of your guidance, Mr Caton, and I will not be drawn down that line of response.
I note the comments made by Members on both sides of the Committee on the clause. The hon. Member for Bradford South has said that he will be working hard, perhaps with his right hon. Friend the Member for Wythenshawe and Sale East, and perhaps they will keep my officials working hard. I pay tribute to the work of my officials. I am sure that right hon. and hon. Members on both sides of the Committee will wish to do so, too, as they make so much effort and conduct so much activity behind the scenes. While Ministers are engaged in the process by giving directions and setting policy, I am sure that right hon. and hon. Members will recognise that much of the wording and drafting is down to the skill, expertise and knowledge of parliamentary counsel. I pay tribute to them for the work that they do in drafting legislation.
My hon. Friend the Member for Beckenham asked about the term “obviously flawed”. To be fair, that question was also raised by Opposition Members. An appropriate test at the permission stage acts as a check on the Secretary of State’s exercise of his or her powers. At that stage, it is clearly not appropriate for the court to make the final determination on the case, because it is likely to be an ex parte process, as the right hon. Member for Salford and Eccles indicated, and I will come back to that. The court cannot assess a case fully without the individual’s evidence being heard.
The full review by the court takes place at a later stage after the terrorism prevention and investigation measures notice has been served. At that stage, the court fully reviews the decisions by the Secretary of State. By that time, the test is well beyond “obviously flawed” and beyond the traditional concept of judicial review. The court makes its own determination on the facts in terms of reasonable belief, and it exercises intense scrutiny of the decisions. Such scrutiny in many ways reflects the Court of Appeal case of MB. In considering and preparing the legislation, we have reflected on the case law that has developed around the existing control orders regime.
On the issue of “may”, the right hon. Member for Wythenshawe and Sale East asked about the knowledge of the process by the individual who may be the subject of a TPIM. It is the case that individuals will not usually know about the permission hearing, as the right hon. Member for Salford and Eccles rightly stated because, for example, there may be a flight risk. A TPIM might be sought because information or intelligence indicates that someone might be about to leave the country, so it is necessary to intervene. There may be a situation or circumstances in which an individual might have knowledge—for example, if they are already the subject of a TPIM notice, but the court has quashed it on technical grounds, and the Secretary of State seeks permission for a new TPIM notice to be put in place. There are such circumstances but, as I think the right hon. Member for Wythenshawe and Sale East would accept, they are likely to be narrow, given the preventive nature of the process, and given that the ex parte process implies that it takes place without the knowledge of the person to whom the notice is likely to be issued. Such an arrangement is important and the court needs to be able to consider it on that basis. The drafting reflects that.
The court will consider a range of material: the proposed TPIM notice; a witness statement from the Secretary of State setting out the need for the proposed measures and obligations, and the matters that are being taken into account in determining them; a classified statement from the Security Service setting out the intelligence case; and an assessment of the risk posed by the individual and the need for a TPIM notice to manage the risk in that context. I hope that that explains the background and the basis for the way in which such notices are drawn up and sought, and the fact that the court will need to consider.

Paul Goggins: I find that reassuring, because the Secretary of State will be under enough pressure in making decisions about what is proportionate and necessary when going to court to seek permission. Determining whether to tell the suspect in advance would be an additional burden. If the court seeks to rule on whether that was flawed, that would add to the burden. The Minister’s reassurance that it would be wholly exceptional for the suspect to be notified in advance is welcome.

James Brokenshire: I am grateful for the right hon. Gentleman’s comments. The permission hearing will be part of a multi-layered approach to judicial scrutiny and a preliminary safeguard to ensure that the decision to impose measures is not “obviously flawed”. It does not replace the full, subsequent High Court review, during which all the evidence and information will be scrutinised. The decision that follows the High Court review will then be assessed from a broader perspective.

Gerry Sutcliffe: The Minister’s comments go back to my point. I understand that the Secretary of State will go to the court to apply for permission for the measures to be taken, but what about overnight residency? If that is one of the permissions for which she asks, could someone who received a notice claim that the process was flawed if they had not been given the opportunity to talk about an agreed locality? I am slightly worried that the Secretary of State will go through all that for nothing. Judicial scrutiny is important, and as my right hon. Friend the Member for Salford and Eccles has said, litigation has been evident in the process. Is that a weakness in the provision?

James Brokenshire: I understand the hon. Gentleman’s point. It is not a weakness in the measure or an “obvious flaw”, to use the term in the Bill. It is not intended that the provision and the overall framework of the Bill cover only what may be granted when the notice is issued at the outset. There must be contemplation of possible subsequent variations, at which point people may engage in discussions about arrangements, and consider the appropriate locality. I am confident that the provision is well considered, and I pay tribute to the work of the parliamentary counsel in achieving that.
It will be possible to agree the locality after the notice is served, which will be part and parcel of the stepped approach. After initial permission is granted, the process will move forward to the service of the notice and the directions hearing, with the full hearing thereafter. Steps will be taken and oversight will be applied, so the process will be very much tiered and considered.
We are confident that the drafting achieves the end results. It is based on previous legislation, so it reflects the careful drafting that was previously undertaken and the judicial scrutiny to which that drafting has been subjected. Lawyers on the Committee will understand that use of precedent and the desire to apply drafting that has previously been considered. The court will have oversight, and we recognise the work that has gone into preparing for that. On the basis of my comments, I hope that the Committee will be minded to agree to the clause.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clause 7  - Urgent cases: reference to the court etc

Question proposed, That the clause stand part of the Bill.

Gerry Sutcliffe: I shall not detain the Committee too long. The clause gives effect to schedule 2, which makes provision for cases in which the Secretary of State imposes measures on an individual without first obtaining the permission of the court. Such measures will be used in exceptional circumstances and for urgent cases. Will the Minister indicate the type of event for which the provision will be called into play?

James Brokenshire: Clause 7 gives effect to schedule 2, which makes provision for urgent cases in which the Secretary of State may impose measures on an individual without first obtaining the permission of the court, as the hon. Gentleman says.
There are similar provisions relating to control orders in the 2005 Act. I confirm that this urgent and exceptional power has been used only once since control orders were introduced. In all other cases, it has been possible to obtain court permission in advance, and that will always be the preferred option.
The hon. Gentleman asks in what type of cases the Government will consider using the urgent procedure. As I have said, it would be used in rare and exceptional cases when there was an operational need to avoid any delay in taking measures that might be considered necessary to protect the public, such as in a case when intelligence might suggest that a person was planning imminently to travel abroad for terrorist training and measures were to be imposed to prevent that travel.
That is the sort of example in which the procedure might be appropriate, but obviously we cannot second-guess the situation. I would not want to try to bind the hands of the Secretary of State in this Committee, but I hope that that example is helpful to the hon. Gentleman as a suggestion of the type of circumstances in which the procedure might be necessary.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 8  - Directions hearing

Question proposed, That the clause stand part of the Bill.

Paul Goggins: Again, I shall not detain the Committee long, but I would like some further reassurance from the Minister.
Clause 8(2)(a) provides that the directions hearing must be held
“within the period of 7 days beginning with the relevant day”.
Will the Minister explain the approach that the Secretary of State will take? Is it that likely to happen after three, five or seven days? I would welcome a general outline of whether the Secretary of State would regard it as something that needed to happen as quickly as possible. I appreciate that cases will differ, depending on their complexity and the circumstances, but I would welcome an explanation of the general approach.
It would reassure the Committee and the wider public to know that if the suspect—the person subject to the TPIM notice—wanted the period to go beyond seven days for whatever reason, such as to instruct representatives, the conditions for which the Secretary of State sought permission would remain firmly in place. We would not want the suspect to be able to deploy delaying tactics to have the conditions loosened or removed.

James Brokenshire: It might be helpful if I explain the basis of clause 8, which is in essence to ensure that in each case when measures are imposed, there is a prompt and clear timeline for the steps that need to be taken towards the subsequent full High Court review.
As lawyers who are members of the Committee will realise, a directions hearing may relate to the disclosure of information, for example, and the process by which lawyers on either side—the Government’s or the relevant individual’s—might want to exchange witness statements. Such a procedural approach sets out, in essence, the steps that need to be undertaken, and when they will be undertaken—the timeline envisaged towards the full hearing, which we shall deal with on a subsequent clause.
The clause is not about considering the restrictions or the nature of the evidence. It is more to ensure the speedy process of the approach towards the full hearing. I hope that that helps the right hon. Gentleman and clarifies the purpose of the clause. I also assure him that the restrictions under the TPIM notice would remain in place, because it would be only at the full hearing that consideration would be given to the Secretary of State’s approach and the necessity or reasonableness of the conditions. It is at that later stage that the court would consider those points and the information available.
It is important that the hearing takes place speedily—within the seven-day period that is prescribed in subsection (2)—so that there is a direction of travel to ensure that the subsequent oversight is well prescribed and telegraphed. Subsection (6) says:
“Directions under subsection (5) must provide for the review hearing to be held as soon as reasonably practicable.”
That relates to a point in the preceding clause—I am sorry that I did not address it—about the process and the steps that must be taken to ensure that the full hearing is held as soon as is reasonably practical so that there is subsequent oversight. We want the process to move forward to the full hearing with clarity for both sides about the steps that need to be made, and that is part and parcel of the concept of the directions hearing.

Paul Goggins: This issue might apply more in theory than in practice, but it would be interesting to hear the Minister’s views about it. He is making it very plain that the Secretary of State’s intention is to move as quickly as possible at all these stages, which I find reassuring. However, what if the Secretary of State is ready to go with a review hearing
“as soon as reasonably practicable”,
as set out in subsection (6), but the subject of the TPIM notice continues to delay, refuses to set a date and is happy for the matter to drift on? One can only speculate why that would be the case, but if the suspect continues to obfuscate, delay and cause difficulty, does the Secretary of State have any power to force the review to happen at the point at which she is ready to go when there is no good reason why the suspect continues to delay?

James Brokenshire: This is where we get into the detail of the process of considering the relevant steps. I talked about the exchange of witness statements and disclosure bundles, which is the sort of normal process that is undertaken. It is the court that might consider delaying the hearing, so the matter is not totally in the individual’s hands. Clearly, however, with regard to the balance of where obligations lie and the restrictions that are put in place under a TPIM notice, it would be in the individual’s interest, in normal circumstances, to want to progress to the full hearing so that the restrictions that might be imposed could be considered. The court will need to look at matters very carefully—in the initial directions hearing, and in any further proceedings, such as procedural hearings, that might take place before the full hearing—to ensure that evidence is supplied appropriately so that there is not an imbalance between the two parties and there is a proper full hearing. The exchange of information must take place to ensure that the court and the parties can prepare for that hearing as effectively as possible.
As in any other court proceeding, if the court felt that there was obfuscation by either party or a determined delay to frustrate the process, the court itself would be able to set the timeline to require that steps are undertaken at particular points, and if they are not taken, the court will proceed to the hearing. Ultimately, ensuring that there is no such abuse is part and parcel of the normal litigation process, and that responsibility lies with the court.
I hope that I have reassured the right hon. Gentleman about the steps that will be undertaken and the process that lies behind this measure. I trust that the Committee will agree to the clause.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9  - Review hearing

Question proposed, That the clause stand part of the Bill.

Gerry Sutcliffe: Again, the fact that I am not a lawyer leads me to ask a question. Paragraph 76 of the explanatory notes refers to the review and the function of the court in relation to reviewing decisions. It says:
“This review must apply the principles applicable on an application for judicial review”.
It would be helpful for the Minister to outline the thinking behind that, and to tell the Committee what the test means.

Paul Goggins: The Minister is doing a superb job of explaining the process. His reassurance is welcome to members of the Committee and the wider public, who want to be assured at all times that their safety and security is uppermost in the minds of Ministers.
Subsection (5)(c)(ii) states that it is possible for the court to vary the measures specified in the TPIM notice. That is a necessary power; the individual or their representatives may argue persuasively that a particular measure is disproportionate, and the court may wish to change it. Presumably, the court could also vary a condition upwards and make it more severe, if it were concerned that the original condition was too lax. I would like reassurance from the Minister that the provision will work both ways and that, if necessary, the court could make a condition more severe, rather than less.
If that is the case, I have one concern, which relates back to an earlier debate although it is relevant to this issue. A court might be concerned that the conditions linked to the TPIM notice were inadequate, but it could not order the relocation of the individual to another part of the country because, at the moment, the Bill would not allow that. The court is not in a position to impose a curfew during the day—that has been ruled out because a person can be forced to remain at home only overnight—and furthermore it could not compel circumstances in which the individual could not have their mobile phone, computer or landline. The court has the power to vary the conditions, yet the Bill as drafted would close off various options that the court may wish to use.
The Minister has paid tribute to his officials, and I agree with him wholeheartedly—indeed, there are one or two familiar faces from previous days. I do not know whether the Minister’s officials advise him that there is merit in the argument being put forward, but he has to listen to that advice if it is given. Perhaps different advice has been provided, but I am sure the Minister will listen to it carefully. Amendment 125, which we discussed during our consideration of schedule 1, would have given the Secretary of State—and therefore, I presume, the court—the power to impose an additional condition if that was considered necessary and proportionate in particular circumstances.

Rebecca Harris: I am not a lawyer—it seems obligatory to state that when one stands up—but I am confused. The right hon. Gentleman seems to suggest that the court could rule on an operational decision made by the security services and the Secretary of State by saying that a poor decision had been made about how to deal with an individual case. Surely the court can rule only on the legality of the provisions that the security services and the Secretary of State wish to introduce.

Paul Goggins: The non-lawyers might be in a majority. I am not a lawyer either, so let us celebrate the growing numbers of self-declared non-lawyers on the Committee. I might be wrong—perhaps the Minister will correct me—but my understanding is that the Secretary of State will have sought permission and conditions will have been imposed. There will then be a review hearing at which the court will consider whether the conditions in the order are necessary and proportionate. Having heard all the information, however, the court may wish to vary the conditions by making them more stringent, rather than less. I am not saying that that is likely in most cases, but it could happen, and I assume that the court would have the power to do that.

Gerry Sutcliffe: The court, of course, will have access to all the information—both open and closed—and it will therefore be able to vary the order.

Paul Goggins: That is entirely right. I know that this is unusual. One associates courts with a tendency to reduce or lessen the burdens of conditions, but I would want reassurance that it would be possible to make a variation upwards.
 Hazel Blears  rose—
 Dr Huppert  rose—

Paul Goggins: If my right hon. Friend the Member for Salford and Eccles will forgive me, I shall take an intervention from the hon. Member for Cambridge first.

Julian Huppert: I shall not assume that any favouritism is implied.
I am interested in the case that the right hon. Gentleman makes. I am not familiar with exactly how the court proceedings would work, but I would expect that what he suggests is unlikely because I do not understand who would argue for stronger provisions. I presume that the Secretary of State would argue that her initial decisions were correct, and that the person subject to the TPIM notice would not argue for stronger conditions. Where would the pressure to increase the thresholds come from?

Paul Goggins: I accept that this is not likely, but I am just foreseeing circumstances in the review hearing in which all information, closed and open, is available to the court and, following an exchange between the different parties, it becomes clear that one of the conditions is not stringent enough. There would then be a choice. The Home Secretary could start the whole process again and re-impose new conditions, but a quicker solution would be for the court to impose a more stringent condition. That would imply that the Secretary of State had started to acknowledge that there was a need for something more stringent, but such an approach might be a speedier way of imposing a more stringent condition than going back to the start of the process. I acknowledge that that is unlikely, but we have to consider all circumstances in Committee, even the most unlikely.

Hazel Blears: My right hon. Friend makes a fascinating and effective argument about to what might happen at a review hearing. Subsection (5)(c) gives the court the power to give directions to the Secretary of State, while sub-paragraph (ii) allows it to direct on the variation of the measures. I would be keen to hear from the Minister that “variation of measures” does not automatically mean relaxation. Let us consider the interplay with clause 12. Paragraph (a) of clause 12(1) states that the variation could consist of “relaxation or removal”, but the variation under paragraph (c) could consist of the Secretary of State saying that she needs to vary upwards rather than downwards. The power in clause 9(5)(c)(ii) is interesting, because it reads as if the court would have the power to order a variation that could involve a more stringent condition, rather than a relaxation, so I would be interested in the Minister’s view of that.

Paul Goggins: When one starts out with a certain line of argument in curiosity about whether it might develop into something of substance, it is always encouraging to receive various interventions in which there is at least a question or two for the Minister to answer. I am therefore perfectly happy to conclude my speech.
 Stephen Phillips (Sleaford and North Hykeham) (Con) rose—

Paul Goggins: Does the hon. and learned Gentleman wish to intervene?

Stephen Phillips: No. I am going to try to follow this.

Paul Goggins: Given the hon. and learned Gentleman’s customary eloquence, I am sure that he will be well worth listening to.

Stephen Phillips: It is an enormous pleasure to follow the right hon. Gentleman. When he reads the Bill, he thinks of things that none of the rest of us have thought of, and it is important that we deal with them.
This is a bit of a—I was going to say white rabbit—red herring, I am afraid. While it is true that, under subsection (5), the court has the power to vary the measures specified in the TPIM notice, the exercise in which the court is engaged, as set out in subsection (2), is essentially a review of the decision that has been reached by the Secretary of State, as it applies the principles applicable to judicial review. The scope of the exercise in which the court is involved is a consideration of whether the decision is disproportionate, irrational or subject to challenge on some other basis. Given that scope, it is unlikely that a court would vary a TPIM notice by imposing more onerous conditions, and doing so it would also be contrary to the clause, as properly construed.
It would be wholly unacceptable for an unelected judge to impose more stringent conditions than the Executive had asked for, subject to the review of the court. The judge would not be answerable to anyone, and that would undermine the entire spirit of what the Bill is intended to achieve. I hope that we will hear whether the Minister agrees. The right hon. Gentleman is right to raise the issue, but his clever position seems to me to be, in fact, an impossibility.

Hazel Blears: I understand the hon. and learned Gentleman’s argument, which is essentially that the court will be carrying out a review process rather than substituting its own decision for the Secretary of State’s, but if his argument is to hold true, is it not the case that the relevant word in subsection (5)(c)(ii) should be not “variation” but “relaxation”? The very fact that “variation” is used gives the court enough leeway to vary the measures up or down.

Stephen Phillips: I am a lawyer and, according to the right hon. Lady’s colleague, the right hon. Member for Tooting (Sadiq Khan), whose constituents I met last week, a rather good one. “Variation” is used by lawyers to indicate that the remedy available to the court is not simply to continue or to strike down an order, but to change its terms. “Relaxation” would not be an appropriate word, because no lawyer would know exactly what it was supposed to mean.

Hazel Blears: May I direct the hon. and learned Gentleman’s eye to clause 12(1)(a), which states
“the variation consists of the relaxation or removal of measures”?
Paragraph (c) of the same subsection says that that
“variation is necessary for purposes”
that have been considered by the Secretary of State. There is a difference. In my view, “variation” is a generic word that covers varying the order to make the requirements more stringent, but there is also a specific inclusion of the word “relaxation”. I agree with the hon. and learned Gentleman that that word is seldom used in legal drafting, but it is in that provision.

Stephen Phillips: Clause 12 deals with what the Secretary of State may do to vary an order, while clause 9, which is what we are debating, deals with what a court may do. No court will read “variation” as implying that a judge has the power to impose more severe restrictions on the liberty of an individual.
Perhaps the Government can consider a drafting clarification. I would not be against that per se, but I view the point made by the right hon. Member for Wythenshawe and Sale East as a red herring, because it does not need to be dealt with. The clause is clear, to my mind at least, but if it is not clear to the minds of others, the Government might wish to consider an extra piece of drafting, although that would not be necessary.

James Brokenshire: As always, I am grateful for the input of my hon. and learned Friend and for the insight and knowledge that he brings to our proceedings.
Opposition Members have already drawn attention to the similarity in some clauses to the structure, wording and drafting of the 2005 Act. That is the case in clause 9 as well, as we have learned from the experience, oversight and structure that was previously put in place. I am advised that that is the case for clause 12, too, so no doubt the right hon. Member for Salford and Eccles considered the point that she raised when the 2005 Act was being drawn up. Under a provision with similar structure and wording to that in clause 12, I am advised that a court has never sought to impose more severe restrictions under a control order.
The Secretary of the State, not the court, makes the TPIM notice and has the power to vary it. Judicial oversight protects the individual’s rights, but the role of the Secretary of State is to protect national security. Ultimately, there is distinction between the roles, so it is right that the terms of the TPIM notice remain for the Secretary of State to vary. As the right hon. Lady said, it is possible to increase the severity of the measures pursuant to clause 12(1)(c), which we shall no doubt consider later in our proceedings.
The court has the power to give directions to the Secretary of State following a review hearing. The terminology reflects the fact that, ultimately, it must always be appropriate for the Secretary of State to frame the terms of the measure, given his or her role for national security and the expertise in their Department. The directions made by the court may, however, give guidance to the Secretary of State about the factors that he or she must take into account when setting the measures. I hope that that was helpful by framing the structure and intent of the clause.

Hazel Blears: May I ask the Minister for clarification? The details of the drafting of six years ago are not entirely at the forefront of my mind. Clause 9(5)(c) gives the court power “to give directions”. Does that go beyond providing guidance?

James Brokenshire: Directions will be given in relation to the specifics that I have discussed. I hope that I have explained the distinct role of the Secretary of State in examining and considering what directions may be given. I know from the right hon. Lady’s previous contributions in Committee that she is well aware of some of the directions that courts have given in the past on the control orders regime with regard to appropriateness, reasonableness and proportionality. They may give directions to the Secretary of State on the consideration of what is appropriate.
I hope that I have explained the process in a key feature of the regime. The involvement of the courts is an important safeguard for the rights of individuals who are subject to the measures, so the Bill takes a multi-layered approach to judicial involvement. It provides appropriate safeguards to ensure oversight and an assessment of the reasonableness of the Secretary of State’s determination of provisions made under the TPIM notice and the factors that have been taken into account. We believe that the structure will be effective. I make no apology for the fact that it is based on experience, because the Government should learn from drafting, judicial process and court cases. We believe that the structure envisaged under the clause will be robust and give effect to the policy considerations at hand.

Paul Goggins: This intervention will be less fanciful than some of those that I have made throughout our proceedings. My right hon. Friend the Member for Salford and Eccles drew attention to subsection (5)(c), which refers to the
“power to give directions to the Secretary of State.”
If the court directs the Secretary of State to change the conditions to make them less stringent than those originally imposed—if the review varies it downward—but the Secretary of State receives information a week later from the Security Service and the police that the individual poses an ongoing and increasing risk, and therefore believes that the conditions need to be made more stringent, will she be able to re-impose the earlier conditions, given that intelligence indicates that the risk has increased, without being in contempt of the court that directed something different a few days earlier?
That is not fanciful; it could happen. We need reassurance that the Secretary of State will have such a power and would not hesitate to re-impose more stringent conditions. Under clause 11, the Secretary of State is required to keep TPIMs under review at all times. We need reassurance that she would not hesitate to make conditions more stringent, even if the court had earlier ordered her to make them less stringent.

James Brokenshire: I am grateful to the right hon. Gentleman for making that point, because various options are available. For example, clause 15(2), allows the Secretary of State to impose measures again, if necessary.
The right hon. Gentleman makes a fair point about changing circumstances. However, we believe that there is enough flexibility in the Bill and the envisaged structure to deal with that. His points are not fanciful. They are on real and challenging issues, and it is appropriate for the Secretary of State to be able to respond to those issues and to act on his or her need to protect national security. That is what we have reflected in the Bill.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Clause 10  - Criminal investigations into terrorism-related activity

Question proposed, That the clause stand part of the Bill.

Gerry Sutcliffe: It is important that we spend a little time on this clause because it has significance for what the Minister said about the difference between TPIMs and control orders. The Government are trying to achieve prevention and to get prosecutions. The clause, which is long and detailed, sets out the requirements on the Secretary of State to consult the chief officer of the appropriate police force, and then what is expected of the Secretary of State and of the appropriate police force.
The clause may cause some confusion, so it is important to hear what the Government see happening here. I am concerned about confusion on who the nominated officer might be. The clause says that that is the chief officer and goes through what is meant by “appropriate police force”. It is my understanding that the Association of Chief Police Officers terrorism and allied matters committee is principally in charge of security issues across the country, working with the different police forces, so there are issues about the relationships. I should preface my remarks by saying that we all agree that prosecution is the ideal way forward, that every attempt must be made to get to that prosecution, and that control orders as they were, or TPIMs as they will be, should be used only if we cannot get the prosecution.
There will be concern about the clause, because we have 43 police authorities and 43 chief constables. What is the relationship between those chief officers? In many police forces, they are not the chief officer responsible for counter-terrorism—that perhaps is usually an assistant chief constable. In West Yorkshire, the deputy chief constable has that responsibility. Will the Minister tell us about the relationships between the individual police forces, the security services nationally and ACPO?
To add potential confusion, we will have elected police commissioners in the future. What will their role be? What terrorism issues will he or she be entitled to be aware of? The Minister may say that it is nothing to do with the elected representative, but these commissioners will feel that they have to be involved because the resources that are required for police forces to deal with everything like the extra surveillance will reflect on those individuals when they are held to account through the democratic process.
This is an important clause. I understand what the Government are trying to achieve, but I wonder about the possibilities for confusion and concern. Perhaps the Minister can tell us—perhaps we should have asked Mr Osborne about this; I regret that I did not do so—what discussions he has had with the police on this? What were their views on the review process? The Bill says that the process has to be kept under continual review by the Secretary of State and the chief police officer. Will that hinder things or make them better? I am not sure how the clause will work, so I will be grateful if the Minister spends a bit of time going through it and explaining its effects.

Stephen Phillips: I should have said earlier that it is a pleasure to welcome you back to the Chair, Mr Caton.
I want to make two points, one of which is a general point. I agree with the hon. Member for Bradford South that the clause is important. Even if it is not acted on by the security services and the police, the temptation under the 2005 Act with the control order regime was to consider that once a control order had been successfully imposed on a controlee, and once it had been challenged unsuccessfully in the courts, with the result that the controlee remained subject to it, the problem had, effectively, been dealt with—the potential terrorist had, in the words of the Act, been controlled and it was, therefore, unnecessary to devote a great amount of resources to gathering the evidence necessary to ensure that a prosecution took place. The problem had been managed and dealt with and, in those circumstances, the temptation for the police and the security services must have been to devote their resources, limited as they are, to defending the country from terrorism.
One of the salutary things the Bill does is to make it clear that it is the strong view of Parliament and, I think, of Members on both sides of the Committee that those subject to certain measures in the context of Executive control—subject to the oversight of the courts—should be prosecuted where possible. The police and the security services should therefore be under a duty, as they are in the Bill, to continue to collect evidence so that prosecutions can be brought in circumstances where, one rather suspects, they might not have been under the 2005 Act, for the simple reason that no real effort was directed at generating the evidence necessary for prosecutions to take place.

Hazel Blears: The hon. and learned Gentleman is making an important point, which goes to the essence of earlier discussions. Government Members have sought to conclude that the Bill puts greater emphasis on collecting evidence and bringing people to prosecution. However, I direct the hon. and learned Gentleman’s attention to section 8(2) of the 2005 Act, which provides that, before a control order is made or applied for, there must be a police consultation about whether a prosecution can be brought. Section 8(4)—I will be putting these points to the Minister directly—is absolutely key. It says:
“It shall then be the duty of the chief officer to secure that the investigation of the individual’s conduct with a view to his prosecution for an offence relating to terrorism is kept under review throughout the period during which the control order has effect.”
That provision is identical to the one in clause 10(5)(a) of the Bill. I have been through the Bill with a fine-toothed comb, and clause 10 is almost a mirror image of section 8. When I make my contribution, I will press the Minister to go through those issues in detail.
The hon. and learned Member for Sleaford and North Hykeham is wrong. He expresses his view in a very erudite way and with a degree of certainty but, on this point, he is wrong. The previous legislation provided that matters had to be kept under review with a view to prosecution and that they had to be constantly scrutinised. That is a key message; the previous Government were not about housing people under control orders, but about continuing to investigate.

Stephen Phillips: As always, I am grateful to the right hon. Lady for her contribution and for pointing out that I am wrong. The point I was making was that the previous measure was called a control order, and the temptation on the part of the security services and the police was to think that once such measures had been imposed, the controlee was being controlled, so it was not necessary to seek to further a prosecution, with the result that resources would be deployed elsewhere. Names are important, and one of the salutary things the Bill will do if it becomes law is impose an investigation measure. It makes it crystal clear that the security services and the police should redouble their efforts after a TPIM has been imposed, to ensure that a successful prosecution takes place. That was the only point I was seeking to make, although I am grateful for my education on the 2005 Act, which I have of course read.

Bob Stewart: I am not an expert, but is not the whole of the TPIM environment to do with investigation? Someone who is subject to a TPIM is by definition under investigation. That is the understanding that I take from the provisions, and I wonder whether the Minister or my hon. and very learned Friend would confirm that.

Stephen Phillips: My hon. and gallant Friend makes the point better than I could ever do. The point about the previous regime was that suspects were being controlled, and now they are to be investigated. Those things are important. There is a clear direction, by virtue merely of the change in name, to the police and the security services, that there is a change in culture, and that we expect the people in question to be prosecuted where possible.
Clause 10(5) requires the chief officer of police to
“secure that the investigation of the individual’s conduct, with a view to a prosecution of the individual for an offence relating to terrorism, is kept under review”
and to
“report to the Secretary of State”.
In so doing, under subsection (6), the chief officer is obliged to
“consult the relevant prosecuting authority before responding to consultation under subsection (1).”
It is possible to conceive of circumstances in which an individual who is a serving member of the armed forces is considered for prosecution for an offence related to terrorism. The difficulty, for the purposes of subsection (8), is that the relevant prosecuting authority would be the Director of Service Prosecutions, not the Director of Public Prosecutions, the procurator fiscal or the DPP for Northern Ireland. I invite the Minister to deal with that point and to suggest whether the Government will consider adding to subsection (8) a new paragraph (d), which would state that the relevant prosecuting authority would be, in the case of offences that would be likely to be prosecuted in a court martial, the Director of Service Prosecutions.

Shabana Mahmood: I wanted briefly to refer the Minister to subsection (9), on the duty to consult, which might be
“satisfied by consultation that took place wholly or partly before the passing of this Act.”
I assume that that is a context point—I know that the Minister is fond of context—designed to ensure that there will be no gap, when the Act comes into force, affecting individuals whom the police and security services have had under review, with a view to their becoming subject to TPIM notices.
How would the provision affect people who are subject to control orders? Presumably there is a process for reviewing whether those individuals would migrate from a control order to a TPIM notice. What consultation will take place, and what interplay will there be with subsection (9) with respect to the current 12 or so control orders?

Hazel Blears: I want to pursue with the Minister the issue that was the subject of my debate with the hon. and learned Member for Sleaford and North Hykeham.
Much has been made, in the process of introducing the Bill, of a renewed—and indeed welcome—emphasis on the necessity of bringing people to prosecution. That has been presented almost as if it were the case that under the previous regime there was no requirement for the Secretary of State to press the police, security services and prosecuting authorities to do everything in their power to ensure that where possible people would be arrested, charged and brought through the criminal justice system; for evidence to be presented and tested in open court; for everything to be done to avoid the necessity of a review hearing with closed evidence and special advocates; and for that process to be reduced to the absolute minimum where it was not possible to bring people through the criminal justice system.
It is really important for the Minister to explain what he considers to be different in the Bill. There may well be some differences between clause 10 and section 8 of the 2005 Act, and I am keen to hear about them.

Julian Huppert: I will leave it to the Minister to discuss the importance of subsection (5)(b). I thank the right hon. Lady for drawing my attention to the detail of section 8 of the 2005 Act, which states that it applies only
“where it appears to the Secretary of State…that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism”.
Will she explain what sort of activity which might be related to terrorism and is sufficiently serious to require a control order would not be an “offence relating to terrorism”?

Hazel Blears: Much would depend on the nature of the intelligence and the information available. In order to maximise the number of prosecutions, the previous Government introduced legislation related to a series of new offences, such as acts preparatory to terrorism and acts facilitating, encouraging and glorifying terrorism. That was an attempt to go upstream of the criminal regime to try to catch as many people as possible in the conventional criminal justice system. There may well be cases where the intelligence available is not sufficient to formulate a criminal charge. The intelligence may be bits of a jigsaw that come together, on which people then take an opinion and make a recommendation, which may not constitute a criminal offence even when we have gone as far upstream as we can with facilitating and encouraging.

Julian Huppert: I absolutely understand the purpose of upstream offences. However, the right hon. Lady has slightly missed the point on evidence. The issue is not about what is admissible in court. The provision in the 2005 Act that we are hopefully getting rid of talks about an activity that
“may have involved the commission of an offence relating to terrorism”.
It is not about what can be proven in open court, but what may have involved terrorism. I find it slightly bizarre that she wants to hang on to something that says that there should be a control order even if the Secretary of State does not think an activity may have involved any sort of offence on even the broadest terms.

Hazel Blears: Section 8(1) of the 2005 Act, which is about continuing to investigate, states that
“where it appears to the Secretary of State…that the involvement in terrorism-related activity of which an individual is suspected may have involved the commission of an offence relating to terrorism”
there is a requirement for ongoing investigation. I accept that the hon. Gentleman is asking whether there are other circumstances in which people would be subject to a control order even if they were not involved in an offence related to terrorism. I have explained that on the intelligence available something might not constitute an offence as currently stipulated, so there may well be such circumstances. I am not aware that there ever were such circumstances, so that may be a drafting point. The emphasis in section 8 is largely mirrored in clause 10 of the Bill. For example, clause 10(2) is a repeat of section 8(2) of the 2005 Act. Clause 10(5), other than paragraph (b)—I am sure that the Minister will discuss about that—absolutely mirrors section 8(4). Clause 10(6) and (7) mirror section 8(5), clause 10(9) mirrors section 8(6) and the definition subsection mirrors section 8(7). I am struggling to find substantive differences.
I take the point made by the hon. and learned Member for Sleaford and North Hykeham that there is a different name, which will send a message, but I would welcome an answer from the Minister as to what additional measures in clause 10 are substantively different, other than the requirement to report to the Secretary of State, which I am sure he will explain, from the provisions in section 8. We have all said in Committee that we want to maximise prosecution, but I cannot see a substantive difference between the Bill’s provisions and the legislation that is already in place. I would welcome the Minister’s detailed explanation on each and every point about why the clause is so much better at moving towards prosecution.

Paul Goggins: I, too, look forward to the Minister’s response to my right hon. Friend’s question. I wish to raise one or two further points. To build on comments made by my hon. Friend the Member for Bradford South, we would all appreciate a better understanding of what the phrase,
“The Secretary of State must consult the chief officer”,
will mean in practice. It may refer to officials consulting senior police officers, but not the chief constable, of a particular area. Perhaps the powers will be so wholly exceptional that the Secretary of State may want personally to be involved—at least in some of the initial discussions, let alone the ongoing ones. It would be helpful to hear a fuller explanation about how Ministers intend to involve themselves in practice in the process .
There is a potential conflict between the oversight of the TPIM and the ongoing investigation. Clause 10 requires the Secretary of State to consult the chief officer in relation to the possibility of a prosecution, the officer being the
“chief officer of the appropriate police force”,
and the police force being the one investigating the offence. If there is an offence, there will be an ongoing investigation and the Home Secretary will have to continue to consult the chief officer of that area.
The chief officer may not, however, be the chief constable of the area where the individual resides when they are subject to the TPIM notice. I detect the potential at least for a slight conflict. The chief constable who is responsible for the ongoing investigation may want less stringent conditions imposed to allow more flexibility and freedom to move, fewer exclusions, and less barring on different associations. He may have an interest in a more flexible approach to the conditions than is wanted by the chief constable responsible for the surveillance and oversight of the individual in the place where they are residing. Understandably, that chief constable might want conditions, overnight residence, and exclusions and associations conditions to be as strict and stringent as possible.
I have great respect for chief officers of police and I am sure that they would have ways of resolving many such issues, but the Minister must be able to see the potential for a conflict of interests. If a chief constable who is responsible for an ongoing investigation has a different view from the chief constable in the area where the individual resides when subject to the TPIM notice, how would that be resolved? Would it be the responsibility of the Secretary of State to make a decision? I can imagine some real difficulties, because that would begin to stray into operational policing matters, and it would not, of course, be appropriate for the Secretary of State to involve herself in those kinds of decisions. I would be interested to hear the Minister’s comments on how the Secretary of State would resolve a conflict of interests.

Bob Stewart: I want to say how good the 2005 Act was in the circumstances of the time. I supported it as a member of the public, because it was introduced fast and properly to try to deal with a specific situation. I do not have a problem with the fact that there is replication of the 2005 Act in some of the clauses in the Bill, because that is a compliment to the original drafters, the right hon. Member for Salford and Eccles and other Members who were involved. I do not have a problem with cribbing sections. As we go through the Bill, we shall see that there are differences between it and the Act.
I think of TPIMs as a slightly more sophisticated and measured way to build on the 2005 Act with the passage of time. I thank the Opposition for the way in which they acted in 2005, which was entirely proper. I have no difficulty whatever with taking little bits of the Act to put in the Bill, because all of us in Committee and throughout Parliament are trying to do our best to make good law. TPIMs are a step change—they are different because of the different environment, so I hope that they will be good law, building on the 2005 Act, which was excellent at the time.

James Brokenshire: We have had a useful debate on clause 10, which relates to criminal investigations into terrorism-related activity. As I have said in previous sittings, we are absolutely committed to the priority of investigating and prosecuting suspected terrorists. The best place for a terrorist is a prison cell; I think we all agree on that. The police and the security and intelligence agencies work tirelessly with the Crown Prosecution Service to investigate and prosecute those whom they suspect of being guilty of terror offences and to put them in prison if they are convicted. Right hon. and hon. Members recognise that, and I emphasise it once more.
We accept that there are—and, sadly, will continue to be—dangerous individuals whom, despite our best efforts, we can neither prosecute nor, if they are foreign nationals, deport. That is a challenge with which we and previous Governments have wrestled, which is why we believe that there is a need for preventive measures to protect the public from the threat posed by that small number of dangerous individuals. We believe that the provisions in the Bill represent the most appropriate, proportionate and effective powers for dealing with that risk.
There should be no doubt about our unwavering and absolute commitment to investigation and prosecution where possible. The hon. Member for Birmingham, Ladywood has commented on my focus on context and, again, I apologise to her for discussing it. Investigation and assessment take place before a TPIM is obtained, in the same way as for control orders. A decision has to be made at a certain point about whether there is sufficient admissible evidence to bring a prosecution, and of course we will always apply that so that if the evidence is there, a prosecution can be brought.

Hazel Blears: So did we.

James Brokenshire: I hear what the right hon. Lady says, and I do not wish to imply that the previous Government had any other motivation. Once a TPIM notice has been obtained, we must do all that we can to continue the investigation of an individual’s conduct to see whether further evidence or information can be obtained about previous or subsequent activity. We must consider the context of what happens before the TPIM notice and the context of what happens thereafter.
There are similarities between the provisions in the Bill and those in the 2005 Act, and I make no apologies for that. What is important, however, is the consultation that we envisage, and the requirement for the report to the Secretary of State on the ongoing review of each investigation. Such framing of the legislation is an important way of keeping everyone’s mind focused on our continuing desire to bring people to justice where appropriate; to bring people before the courts where appropriate; and to do our utmost to prosecute individuals where there is evidence that we can adduce and bring before the court. Clause 10 requires consultation with the police, before the imposition of a TPIM notice, about the question of whether there is evidence available that could realistically be used for the purposes of prosecuting the individual for an offence relating to terrorism. That provision reflects the 2005 Act. The police must consult the Crown Prosecution Service on that matter before responding to the Secretary of State. That provision will ensure that a TPIM notice is not imposed on an individual when prosecution for a terrorism-related offence is viable.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.